Butt v The Queen - [2012] NZCA 96

IN THE COURT OF APPEAL OF NEW ZEALAND

CA569/2011
[2012] NZCA 96

BETWEEN KAMAL JONATHAN BUTT
Appellant

AND THE QUEEN
Respondent

Hearing: 12 March 2012

Court: Stevens, Chisholm and Heath JJ

Counsel: P E Dacre for Appellant
K Raftery for Respondent

Judgment: 19 March 2012 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

On 20 July 2011 the appellant, Mr Butt, was found guilty by a jury of one charge of manufacturing the Class A controlled drug methamphetamine. He was sentenced by Judge Perkins in the District Court to three years imprisonment.[1] The Crown accepted, and the Judge sentenced the appellant on the basis, that his involvement was as a party to the manufacture. The appellant appeals against that sentence on the basis that it is manifestly excessive.
[1]R v Butt DC Auckland CRI-2010-404-94, 31 August 2011.
Mr Dacre, counsel for the appellant, informed us that during the course of the trial the appellant had successfully obtained a discharge under s 347 of the Crimes Act 1961 on a charge of supplying the methamphetamine, which was the subject of the manufacturing charge.

Factual background

The appellant was part of a small group whose members have been charged with a number of methamphetamine-related offences. The charges were laid following termination of a police investigation known as Operation Heller in late 2008. The present appeal concerns a charge related to a “cook” between 15 and 18 October 2008. Much of the evidence arose from the interception of telephone calls and text messages.
The evidence against the appellant consisted mainly of two telephone calls between himself and another member of the group, Mr Hunter, who was at a higher level in the methamphetamine manufacturing operation.[2] During the first telephone call made during the course of the cook, the appellant stated that the product was not quite ready. There was also a discussion about when it might be available for delivery. Mr Hunter said he was concerned about “only two things”, namely, “[j]ust colour and the weight”. In the second telephone call 70 minutes later, the appellant told Mr Hunter that the process was finished. Mr Hunter asked if the product was “white and dry”, to which the appellant responded in the affirmative. There followed a discussion about when the appellant and Mr Hunter might meet up. That proved not to be possible that evening because, as Mr Hunter said, “[t]here’s a lot of Police activity around the cemetery, a hell of a lot”.

Sentencing

[2]Mr Hunter was sentenced to six years imprisonment: R v Hunter DC Auckland CRI‑2010‑404‑94, 31 August 2011.

The Judge imposed a final sentence of three years imprisonment. The Judge said he preferred not to take what he referred to as a “mathematical” approach to sentencing.[3] While the sentencing notes do not identify the initial starting point or the quantum of the discount given, the Judge’s reasoning can be deduced from the sentencing notes as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Butt v The Queen

Details

AGLC: Butt v The Queen [2012] NZCA 96
Case: [2012] NZCA 96
Decision Date: 19 March 2012

CaseChat Overview and Summary

Kamal Jonathan Butt appealed against his sentence of three years imprisonment for manufacturing methamphetamine as a party, arguing that the sentence was manifestly excessive. The case was heard by the Court of Appeal of New Zealand, consisting of Stevens, Chisholm and Heath JJ, on 12 March 2012. Counsel for the appellant was P E Dacre, and for the respondent, K Raftery. The Court delivered its judgment on 19 March 2012 at 11.30 am, dismissing the appeal.

The legal issue before the Court was whether the appellant's sentence was manifestly excessive. The appellant argued that the Judge did not sufficiently take into account his lower level of offending and culpability as a party. The Crown submitted that the Judge did consider the appellant's lower level of offending and that the sentence was at the lower end of the available range, given the particular circumstances and the appellant's role. The Court found that the Judge had properly considered the appellant's lower level of offending and culpability and that the sentence was not manifestly excessive.

The Court held that the appellant's level of offending and culpability were given proper weight, and that there was ample authority to support the proposition that those charged with being a party to the manufacture of methamphetamine at a band two level can expect to receive a starting point of approximately three and a half years imprisonment. The Court further found that even if the sentencing had been approached on the basis of the supply to Mr Hunter of a commercial amount of methamphetamine, the minimum starting point would have been three years imprisonment. Therefore, the sentence of three years imposed on the appellant was not manifestly excessive.

The Court dismissed the appeal and upheld the sentence of three years imprisonment imposed on the appellant.

Orders